The Black Hole of Misappropriation: Astronaut’s Right of Publicity and Trademark Claims Survive Summary Judgment

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Is astronaut David Scott more like fellow astronaut Buzz Aldrin or NASA pilot Chuck Yeager? Scott was the Commander of the Apollo 15 mission and the seventh person to walk on the moon, so the obvious answer is Aldrin. However, when it comes to the right of publicity, Scott has much more in common with Yeager, at least according to Judge Nathanael Cousins of the Northern District of California in Scott v. Citizen Watch Company American, Inc.

The Moon Watch

Before Scott went to the moon in 1971, the Bulova company gave him a chronograph watch to take with him (which Scott later auctioned off for $1,625,000).  In 2014, Bulova decided to create and sell a commemorative edition based on the same watch. Bulova promoted the product using images and audio of Scott during the moon landing, and with text like:

This Special Edition Moon Chronograph Watch replica takes inspiration from astronaut Dave Scott’s personal Bulova chronograph worn during the Apollo 15 moon landing.

Bulova later removed Scott’s name from the descriptions, but still bragged about the watch having been worn by “Apollo 15’s mission commander.”

Aldrin v. Yeager

Scott sued Bulova, asserting nine causes of action, including one for violation of his right of publicity. Under California law, this cause of action requires Scott to prove that (1) Bulova used his identity; (2) for commercial advantage; (3) without consent; and (4) it caused injury to him.

Bulova moved for summary judgment, arguing that it should prevail as a matter of law because the moon landing was a matter of public interest. Bulova cited Aldrin v. Topps Co., Inc., a case in which defendant Topps use an iconic image of Aldrin on the moon, and historical text about his mission, for an “American Heroes” trading card. Aldrin sued Topps in the Central District of California, but his right of publicity claim was dismissed.  His historically important identity was not being used to sell a product – it was the product (similar in many ways to a history book, which is simultaneously a commercial product and fully protected speech). As such, Aldrin’s claim was barred by the First Amendment, even if a profit motive was involved.

Judge Cousins held that Aldrin was easily distinguishable from Scott’s case. Unlike the trading cards in Aldrin, the product here was not the speech; it was a watch. Thus, Bulova’s commercial speech deserved a lower degree of protection. The Court observed that Scott’s claims were much more like those in Yeager v. Cingular Wireless LLC.  In that case, Cingular issued a press release containing the following language:

Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.

When Yeager sued, the Eastern District of California rejected Cingular’s First Amendment public interest defense because of the tenuous connection between the product and the matter of public interest. Cingular also argued that its use of Yeager’s name was merely “incidental,” but the Court held that a jury could find that this language was an attempt to commercially associate Yeager’s “non-fungible” identity and accomplishments with Cingular’s products in the minds of consumers.

Because Scott’s claim against Bulova was much more like Yeager’s case than Aldrin’s case, Judge Cousins held that “the Court cannot say as a matter of law that [Bulova’s] advertisements do not cross the event horizon into the black hole of misappropriation.”

Trademark and Other Claims

The Court also refused to dismiss Scott’s Lanham Act claims, finding that there was a triable issue of fact as to whether confusion was likely. Among the evidence cited against summary judgment were online consumer comments calling the product the “Dave Scott Re-edition.” Judge Cousins further rejected a motion for summary judgment by co-defendant Kay Jewelers, which unsuccessfully argued that passive downstream distributors should not, as a matter of law, be liable for right of publicity violations.

The Court did, however, dismiss Scott’s “Emotional Distress” claims, which were based only on Scott’s self-serving declaration. The parties are scheduled for a further case management conference in May, at which point they likely will decide whether they wish to proceed to trial or schedule a settlement conference.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Foley Hoag LLP - Trademark, Copyright & Unfair Competition

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